INTRODUCTORY COMMENTARY
This chapter deals with conduct which is designed to culminate in the commission of a substantive offense but which fails to do so. The failure may be due to apprehension or intervention by law enforcement officials or it may be due to some other miscalculation on the part of the defendant. In this sense attempt, solicitation, and conspiracy are predominantly inchoate in nature and are grouped in this chapter for a unified and integrated treatment. While it is true that other offenses, such as reckless endangering, forgery, kidnapping, property damage and burglary, have inchoate aspects, "attempt, solicitation and conspiracy have such generality of definition and of application as inchoate crimes that it is useful to bring them together in the Code and to confront the common problems they present."[1]
§705-500 Criminal attempt. (1) A person is guilty of an attempt to commit a crime if the person:
(a) Intentionally engages in conduct which would constitute the crime if the attendant circumstances were as the person believes them to be; or
(b) Intentionally engages in conduct which, under the circumstances as the person believes them to be, constitutes a substantial step in a course of conduct intended to culminate in the person's commission of the crime.
(2) When causing a particular result is an element of the crime, a person is guilty of an attempt to commit the crime if, acting with the state of mind required to establish liability with respect to the attendant circumstances specified in the definition of the crime, the person intentionally engages in conduct which is a substantial step in a course of conduct intended or known to cause such a result.
(3) Conduct shall not be considered a substantial step under this section unless it is strongly corroborative of the defendant's criminal intent. [L 1972, c 9, pt of §1; gen ch 1993]
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Introductory Commentary:
1. M.P.C., Tentative Draft No. 10, comments at 24 (1960).
Cross References
Definitions of states of mind, see §702-206.
COMMENTARY ON §705-500
The proscription against criminal attempts is sometimes said to be based on the dangerousness of the actor's conduct. While this rationale would support a result in many cases, in others it would not. A defendant may engage in conduct which itself cannot be said to be dangerous, but which, when measured against the defendant's intent, would indicate that the defendant himself is a dangerous person and the proper subject of the penal law. The Code therefore focuses on the defendant's disposition. Our concern is not with thought or disposition alone; but rather to clarify "what conduct, when engaged in with a purpose to commit a crime or to advance towards the attainment of a criminal objective, should suffice to constitute a criminal attempt."[1]
The nature of intent in attempt cases. Subsection (1) recognizes penal liability where the defendant's conduct is intentional and consummation of the crime is prevented either by the defendant's erroneous appraisal of attendant (i.e., those specified by the definition of the offense) or other circumstances or by some intervening factor following a substantial step in a course of conduct planned to culminate in the commission of the crime. It is easy to recognize penal liability in such cases, notwithstanding the absence of a substantive offense, because the defendant's intent--the defendant's conscious object--is commission of a crime. The defendant's disposition toward criminal activity thus established, attempt liability is imposed, under subsection (1)(a), if the defendant's conduct has advanced so far toward the criminal objective as to constitute the crime had the attendant circumstances been as the defendant believed them to be, or, under subsection (1)(b), if the defendant's conduct has advanced so far toward the criminal objective as to constitute a substantial step in a course of conduct intended to reach that objective.
In subsection (2) liability is imposed on a defendant who has intentionally engaged in conduct which is a substantial step in a course of conduct intended or known to culminate in a prohibited result. Thus, a defendant who intends to destroy a building, and who regards the destruction of its inhabitants as a regrettable by-product, could be convicted of attempted murder (as well as attempted arson)[2] if the defendant intentionally performed a substantial step (e.g., started a fire) which the defendant knew (i.e., was practically certain) would result in death. Attempt liability is provided for a defendant who engages in such conduct because the defendant's manifestation of dangerousness is of the same order as that of the defendant who engaged in the intentional conduct of subsection (1).
Subsection (2) also covers a relatively infrequent, but nonetheless troublesome, occurrence in attempt cases. A given crime may be so defined that the attendant circumstances may be established by a nonintentional state of mind (i.e., with respect to the attendant circumstances the actor may act knowingly, recklessly, or negligently). If such is the case, and the defendant intentionally engages in conduct planned to culminate in the result, attempt liability should exist if the defendant was otherwise culpable with respect to the attendant circumstances. Suppose, for example, that it is an independent crime to intentionally kill a police officer and that recklessness with respect to the victim's identity as a police officer is sufficient to establish that attendant circumstance. If a defendant attempts to kill a police officer recklessly mistaken as to the intended victim's identity (e.g., the defendant recklessly believes the police officer to be a night security guard), attempt liability ought to result. Subsection (2) so provides. It would hardly make sense to hold that the defendant should be relieved of attempt liability in the situation hypothesized because the defendant did not intend that the victim be a police officer. Furthermore, it would be anomalous to hold that had the defendant succeeded, and the substantive crime been consummated, the defendant would be guilty of the substantive crime but that, upon the failure of the defendant's attempt, the defendant's lack of intent with respect to an attendant circumstance precludes penal liability for the attempt.
It should be noted that the requirement of intentional conduct, with respect to attempts, limits the application of the attempt section to offenses which can be committed by intentional conduct. For example, if a given offense can be committed by intentional or reckless conduct, reckless conduct which stops short of consummation of the offense is not sufficient to constitute an attempt to commit the offense. To constitute an attempt, the inchoate behavior must be intentional, i.e., purposeful. This principle is illustrated by the following passage from the commentary to Michigan's recent revision:
Thus, where criminal liability rests on the causation of a prohibited result, the actor must have an intent to achieve that result even though violation of the substantive offense may require some lesser mens rea. Reckless driving, for example, does not constitute attempted manslaughter. A person charged with the substantive crime of manslaughter may be liable as a result of... recklessness causing death, but the same recklessness would not be sufficient if the victim did not die and the actor were only charged with attempt; here, the state would have to show an intent to achieve the prohibited end result, death of the victim. In this area, as in others if the substantive crime requires only recklessness, the mens rea requirement for an attempt is substantially higher than that for the substantive crime.[3]
Substantial step. Subsections (1)(b) and (2) also deal with and resolve another problem which has troubled courts in deciding attempt cases: the act or conduct sufficient to impose penal liability. It is an old saw that the penal law does not seek to punish evil thought alone. However, in attempt cases some decision must be made as to what conduct, when engaged in with a criminal intent, will be sufficient for the imposition of criminal liability notwithstanding the defendant's failure to commit a substantive offense. It seems clear that there is no difficulty in holding a defendant penally liable for an attempt when the defendant's conduct would have constituted the crime if the defendant had not been mistaken about the attendant circumstances. This is the easy case resolved by subsection (1)(a). In those cases where the defendant's intentional conduct does not constitute the substantive crime either because of some mistake on the defendant's part unrelated to specified attendant circumstances (e.g., mistake as to the capability of the means used) or because the course of conduct has not proceeded to its final objective, some principle must be articulated to indicate when attempt liability initially obtains. This is a most delicate task.
Accepting as we do the position of the Model Penal Code that attempt liability is primarily concerned with the dangerous disposition of the actor as manifested by conduct, this Code also follows the Model Penal Code in rejecting any standard based on the proximity of the actor's conduct to the culmination of the crime.[4] Adherence to that standard would require that the dangerousness of the defendant's conduct rather than the dangerousness of the defendant be regarded as the determining factor. The Code follows the Model Penal Code standard in requiring in subsections (1)(a) and (2) that the relevant conduct amount to a "substantial step in a course of conduct" planned to culminate in the commission of the crime or intended or known to cause a criminal result.
Subsection (3) provides that conduct shall not be considered a "substantial step" under subsections (1) and (2) unless it is strongly corroborative of the defendant's criminal intent. In excluding acts which are not strongly corroborative, the Code seeks to provide an additional safeguard in the application of the "substantial step" standard so that law enforcement agencies and triers of fact will not put equivocal conduct within its ambit. There are, on the other hand, certain types of conduct which, if strongly corroborative of the defendant's criminal intent, could reasonably be held to constitute a "substantial step" and should not be held insufficient on this issue as matter of law. These types of conduct are: (a) lying in wait, searching for, or following the contemplated victim of the crime; (b) enticing or seeking to entice the contemplated victim of the crime to go to the place contemplated for its commission; (c) reconnoitering the place contemplated for the commission of the crime; (d) unlawful entry of a structure, vehicle, or enclosure in which it is contemplated that the crime will be committed; (e) possession of materials to be employed in the commission of the crime, which are specially designed for such unlawful use or which can serve no lawful purpose of the actor under the circumstances; (f) possession, collection, or fabrication of materials to be employed in the commission of the crime, at or near the place contemplated for its commission, where such possession, collection, or fabrication serves no lawful purpose of the actor under the circumstances; and (g) soliciting an innocent agent to engage in conduct constituting an element of the crime.[5] Rather than propose codification of these examples, we set them forth in the commentary to aid the court in the interpretation of subsection (3).
It can, of course, be argued that the Code's formulation leaves an area of imprecision where preciseness is most needed. As in other areas of the Code,[6] the limits of what can be made precise must be recognized. It has been said that the genius of the Model Penal Code, from which this Code is to a great extent derived, is demonstrated by its recognition of the limits of precision in statutory language.[7]
The characteristic spirit of the Code's draftmanship inheres in its adoption of the "Aristotelian axiom" that "it is the mark of the educated man to seek precision in each class of things just so far as the nature of the subject admits." When precision is possible, the Code is devastatingly precise. When precision is not possible, it is not sought, nor is there any pretense that it has been attempted.[8]
While substantiality is obviously a matter of degree, it is no more so in attempt cases than it is in recklessness, negligence, or causation problems. In each case the jury or the court (when it is trying the facts) must address itself to the defendant's conduct and determine, with a view to other stated criteria,[9] whether it should be condemned.
The Code focuses on what is deemed to be the correct function of the act requirement in attempt cases: to provide a standard which (a) distinguishes between conduct which is highly equivocal from the external standpoint and that which is not externally equivocal, or only slightly so, and which (b) is oriented toward the actor's disposition or dangerousness rather than toward proximity to consummation of the substantive crime. In looking at the substantiality of the defendant's step in a course of conduct, the Code requires the trier of fact to measure what has already been done by the defendant--not how much more the defendant must do before consummation of the substantive crime is achieved. To this extent, the shift in focus broadens the scope of attempt liability.
Rejection of defense of impossibility. Focusing as it does on the dangerousness of the actor, rather than on the dangerousness of the actor's conduct, the Code rejects the defense of "impossibility" in attempt cases. The Code does not afford a defense to one who intends a criminal course of conduct but who is mistaken as to certain circumstances which make commission of the crime legally or factually impossible.
Subsection (1) is addressed to the problem of the defendant's mistake as to attendant circumstances (i.e., circumstances specified in the definition of the offense). It makes such mistake immaterial if the crime would have been consummated had the attendant circumstances been as the defendant believed them to be. Thus, for example, a defendant would be guilty of attempt to bribe a juror if the defendant offered a bribe to a person the defendant believed to be a juror notwithstanding the fact that the object of the bribe turned out not to be a juror. A defendant would be guilty of attempted murder if the defendant intentionally shot a corpse or tree stump believing it to be a living person. Of course, the conduct or result must be specified in the definition of an offense; the actor's belief that it is criminal is not sufficient. For example, a person who seeks to give false testimony is not guilty of attempted perjury if the testimony sought to be given is immaterial and would not, if given constitute perjury.[10]
Subsection (1)(b) is addressed in part to the problem of impossibility. A defendant may be mistaken as to circumstances other than those specified in the definition of an offense and such mistake may render actual commission of the offense impossible. Thus, for example, a defendant may aim and fire a gun at another mistakenly believing that it is loaded or the defendant may set some sort of explosive trap unaware that the fuse is defective and incapable of detonating the charge. Also, the defendant may be mistaken as to attendant circumstances and the defendant may have taken a substantial step toward the defendant's criminal objective, but the defendant's conduct has not advanced far enough to constitute the crime had the attendant circumstances been as the defendant supposed. For example, a defendant may set a fatal trap near a corpse, believing it to be a living person. In such cases, subsection (1)(b) permits liability for the attempt. In the examples stated the defendant believed the means chosen to be sufficient or the attendant circumstances to be present, and the defendant has obviously taken a substantial step in a course of conduct planned to culminate in the commission of a crime. There is no reason to preclude liability for the attempt merely because the defendant was mistaken as to some circumstance which made actual commission of the substantive crime impossible. Where the offense is defined in terms of the result of conduct, subsection (2) would also cover the situation.
Previous Hawaii law. The previous law of attempt, H.R.S. §702-1 (as compiled prior to this Code) required intent plus some act towards commission, as does the Code. However, there was no requirement that the act be a substantial step in furtherance of the commission. There are apparently no Hawaii cases dealing with this point. Courts have usually dealt with the evidentiary function of the actor's conduct in terms of whether it constituted an act of perpetration rather than merely preparation.11 The Code focuses more directly and clearly on the function of the requirement without seeking precision where precision is not practicable.
The problem of impossibility, which the Code deals with in subsection (1) and (2), was not covered by any prior statute. Moreover, there is apparently no Hawaii case law on this point. However, this section is in accord with recent penal revisions in other jurisdictions.
Case Notes
Evidence held sufficient to support attempted rape and attempted assault. 56 H. 664, 548 P.2d 271 (1976).
Intent being essential element of attempt, charge of attempt to commit theft was insufficient where there was no allegation of intent. 61 H. 177, 599 P.2d 285 (1979).
Instruction concerning "substantial step". 63 H. 105, 621 P.2d 381 (1980).
Concealment of clothes in bag was a substantial step in the course of attempted theft. 67 H. 581, 698 P.2d 293 (1985).
Sexual assault in the fourth degree and attempted sexual assault in the fourth degree are included offenses of attempted sexual assault in the second degree, within the meaning of §701-109(4)(c). 79 H. 46, 897 P.2d 973 (1995).
Defendant charged with attempted murder, in violation of §707-701.5 and this section, may be convicted of attempted manslaughter, in violation of this section and §707-702(2). 80 H. 27, 904 P.2d 912 (1995).
This section combined with §707-702(1)(a) does not give rise to the offense of attempted manslaughter. 80 H. 27, 904 P.2d 912 (1995).
A person commits the offense of attempted prohibited possession of a firearm, pursuant to subsections (1)(b) and (3), and §134-7(b), if he or she intentionally engages in conduct that, under the circumstances as he or she believes them to be, constitutes a substantial step in a course of conduct intended to culminate in his or her commission of the offense of prohibited possession of a firearm. 93 H. 199, 998 P.2d 479 (2000).
As the offense of attempted prohibited possession of a firearm under §134-7 does not include a result-of-conduct element and subsection (2) does not therefore apply, trial court instruction erroneously defined the state of mind necessary to prove the offense of attempted prohibited possession of a firearm as something less than intentional, as required by subsection (1)(b). 93 H. 199, 998 P.2d 479 (2000).
Pursuant to §§701-109(4)(b), 134-7(b), and subsections (1)(b) and (3), attempted prohibited possession of a firearm is an included offense of prohibited possession of a firearm. 93 H. 199, 998 P.2d 479 (2000).
Where victim testified that defendant sexually assaulted victim in each of the four ways alleged, which was supported by testimony of victim's brother and uncle, evidence was sufficient to prove that defendant intentionally engaged in conduct under the circumstances that defendant believed them to be, the conduct constituted a substantial step in the course of conduct, and defendant intended that the course of conduct culminate in sexual penetration with victim, thus supporting defendant's convictions. 126 H. 383, 271 P.3d 1142 (2012).
Crime of attempted manslaughter is an included offense of attempted murder. 7 H. App. 291, 757 P.2d 1175 (1987).
Trial court must instruct jury as to what specific facts jury must find before it decides whether defendant is guilty of attempted sexual assault in first degree. 77 H. 177 (App.), 880 P.2d 1224 (1994).
Where there was no evidence, independent of defendant's extrajudicial confession, of the corpus delicti of attempted sexual assault of victim by defendant, defendant's conviction reversed. 103 H. 490 (App.), 83 P.3d 753 (2003).
Trial court's omission of the "strongly corroborative" paragraph in the attempted assault in the second degree instructions was presumptively prejudicial and omission was not harmless beyond a reasonable doubt. 104 H. 517 (App.), 92 P.3d 1027 (2004).
There was insufficient evidence that defendant took a substantial step toward the distribution of at least one-eighth ounce of methamphetamine in defendant's possession where there was no evidence that defendant had engaged in negotiations, offered, or agreed to distribute any of the methamphetamine found in defendant's possession. 107 H. 144 (App.), 111 P.3d 39 (2005).
Discussed: 86 H. 1, 946 P.2d 955 (1997).
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§705-500 Commentary:
1. M.P.C., Tentative Draft No. 10, comments at 26 (1960).
2. Under this Code conventional arson has been incorporated as one form of criminal property damage, see chapter 708.
3. Prop. Mich. Rev. Cr. Code, comments at 82.
4. M.P.C., Tentative Draft No. 10, comments at 39-43 (1960).
5. M.P.C. §5.01(2), Proposed Official Draft 81-82 (1962).
6. Cf., e.g., the definitions of "recklessness" and "negligence" in §702-206.
7. Packers, The Model Penal Code and Beyond, 63 Colum. L. Rev. 594, 601 (1963).
8. Id. quoting from Kurland, Religion and the Law 15 (1962).
9. E.g., the corroborative function stated in subsection (3).
10. The person would, however, be guilty of having attempted a lesser offense involving falsification. See chapter 710, part V.
11. See, for a general discussion, M.P.C., Tentative Draft No. 10, comments at 47-68.